Court Denies Landlord's Request for Pretrial Questioning

(Decision submitted by David Hershey-Webb of the Manhattan law firm of Himmelstein, McConnell, Gribben, Donoghue & Joseph, attorneys for the tenant.)

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Landlord claimed that tenant used the apartment for commercial purposes only, left at night and returned in the mornings, was also known by another name, and had other addresses in Manhattan, White Plains, and Yorktown Heights. Landlord noted a tax commission judgment against tenant at one of two West 57th Street addresses. Landlord asked the court for permission to conduct pretrial questioning. Tenant, in turn, asked the court to dismiss the case without a trial.

The court ruled against both landlord and tenant. Tenant's attorney already had sent a letter to landlord's attorney stating that "Michael Hosten," whose name was connected with the White Plains and Yorktown Heights addresses, wasn't an alias for tenant. Hosten was a different person, older and of a different race, who had no connection to tenant. Tenant also stated that he had in the past maintained business offices at the two listed West 57th Street addresses, but that there was no tax commission judgment against him. Tenant claimed that he had primarily resided in the apartment only for 23 years and worked from home as a designer. Tenant submitted copies of his driver's license, voter registration card, voting history record, and bank and credit card statements, all listing the apartment as his address.

The court also noted that while landlord's managing agent now stated that tenant was rarely seen at the building, the lease nonrenewal notice stated that tenant was there during the day but not at night. Tenant's proof was insufficient to prove primary residence. A trial was needed to determine the facts. But landlord had already received from tenant the information it could obtain through pretrial questioning. Landlord didn't explain why it still believed that tenant and Michael Hosten were the same person or present any proof that tenant didn't simply rent office space on West 57th Street. There was no proof connecting tenant to the other cited addresses or to any address other than the apartment.

Ennismore Apartments Inc. v. Foster: Index No. L&T 82732/12 (Civ. Ct. NY; 6/4/13; Wendt, J) [12-pg. doc.]